Director of Public Prosecutions v Floyd
[2021] VCC 1825
•12 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01056
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANNON FLOYD |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2021 | |
DATE OF SENTENCE: | 12 November 2021 | |
CASE MAY BE CITED AS: | DPP v Floyd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1825 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Early plea of guilty – recklessly cause serious injury – commit an indictable offence whilst on bail – COVID-19 pandemic – sentencing principles – Bugmy principles.
Legislation Cited: Sentencing Act 1991 (Vic) ss 5, 6AAA, 18.
Cases Cited:Ejupi v The Queen [2014] VSCA 2; R v Storey [1998] 1 VR 359; Formasa v The Queen [2012] VSCA 298; Worboyes v R [2021] VSC 169; Bugmy v R [2013] HCA 37; R v Renzella [1997] 2 VR 88; DPP v Stone and Uren [2003] VSCA 208.
Sentence: Total effective sentence of 2 years’ and 7 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Hogan | The Office of Public Prosecutions |
| For the Accused | Mr J. Barreiro | James Dowsley & Associates |
HIS HONOUR:
1Shannon Floyd you have pleaded guilty to one charge of recklessly causing serious injury. This offence carries a maximum penalty of 15 years' imprisonment.
2You have also pleaded guilty to the summary offence of commit an indictable offence while on bail (Charge 6) which carries a maximum sentence of 30 penalty units or 3 months' imprisonment.
Circumstances of the offending
3The full circumstances of your offending are set out in the Summary of Prosecution Opening dated 19 August 2021 and marked as Exhibit A on the plea. I will not repeat the full summary here.
4In brief, on 2 December 2020 Dylan O’Callaghan, the victim in this matter, was visiting a friend Brenton Bicheno at his home in Dandenong North. Mr Bicheno has an acquired brain injury. He was living with his ex-partner Nicole Spence, with whom he shared a child. You were in a relationship with Ms Spence at the time of this offence. On this day, you were with Ms Spence at the Fountain Gate Shopping Centre when she received a text message from Mr O’Callaghan stating that he was at her home with Mr Bicheno. She inferred from that message that Mr O’Callaghan had supplied ice to Mr Bicheno who was trying to abstain from drug use. Ms Spence was angry about this and returned to her home with you.
5She entered her home and confronted Mr O’Callaghan telling him to get out. He left the house. Ms Spence, Mr Bicheno, Mr O’Callaghan and yourself spoke outside and the discussion quickly became heated. You and Mr O’Callaghan exchanged several punches. You began grappling with each other and fell to the ground. You got up and the argument continued. At some stage during this period, that is between when you were on the ground and you stood up, you stabbed Mr O’Callaghan twice to the chest area.
6As a result of the stab wounds, Mr O’Callaghan suffered the following serious injuries:
(a) A 1-centimetre-wide penetrating wound to the mid anterior chest wall, near his sternum; and
(b) A 1-2-centimetre-wide penetrating wound to the left intercostal region of the chest and penetrated the left ventricle of the victim’s heart, just lateral to the left anterior descending artery.
7The prosecution case against you is that at the time of stabbing Mr O’Callaghan twice in the chest, you knew that serious injury was a probable consequence.
8This marked the end of the physical altercation. Before loading your car with some of Ms Spence’s belongings, you, Ms Spence and Mr O’Callaghan had another verbal confrontation. You folded up the front registration plate from your car to disguise any attempt by witnesses to identify the registration details. A short time later, Mr O’Callaghan collapsed in the gutter as a result of his injuries and neighbours assisted him. You, Ms Spence and Mr Bicheno left in your car and drove to your home in Cranbourne.
9Mr O’Callaghan was treated by paramedics at the scene and a needle thoracostomy was performed as he was assessed as being at imminent risk of developing a tension pneumothorax, which is a life-threatening complication of penetrating chest trauma. He was then transported to the Alfred Hospital. The full detail of his treatment is outlined at paragraphs 14 to 17 of the prosecution opening. In summary, while in emergency his condition deteriorated and he went into traumatic cardia arrest. He required an emergency thoracotomy, underwent a blood transfusion and was treated with a chest tube to drain bleeding between the lung and chest wall and to reinflate the lung.
10Once his condition was stabilised Mr O’Callaghan then underwent emergency surgery in order to repair the damage caused by the two stab wounds. It was noted that the wound through the left ventricle of his heart was close to the left anterior descending artery which is one of the main arteries that supplies the heart muscle. Following surgery, he was admitted to the Intensive Care Unit while intubated. Mr O’Callaghan was extubated on 4 December 2020 and discharged from hospital on 9 December 2020. According to prosecution submissions on sentence, on 14 December 2020 Mr O’Callaghan was again admitted to the Dandenong Hospital due to further complications and was operated on. He was discharged on 22 December 2020.
11The photos of Mr O’Callaghan’s injuries were tendered and marked as Exhibit B on the plea.
Arrest and procedural history
12On 3 December 2020 the police executed a search warrant on your home and arrested you. You were transported to the Dandenong Police Station where you were interviewed.
13In the Record of Interview (‘ROI’) you admitted to having been involved in a physical altercation with Mr O’Callaghan. You stated that you had only confronted him because he was assaulting Ms Spence at the time. When you moved to intervene between them you observed a knife on the ground, picked it up and attempted to pull Mr O’Callaghan off Ms Spence. After that you saw blood on his shirt, ‘freaked out’ and left. During the interview you indicated that you had not gone around there to cause any trouble or to do any harm.
14After your interview you were remanded in custody.
15You were in custody on these matters between the 3 December 2020 and 26 July 2021, totalling 237 days. You were granted bail on this day with a number of conditions including that you comply with all lawful requirements of the Court Integrated Services Program (CISP). The main factor in support of your bail application was that you were required to care for your then terminally ill partner, Ms Spence.
16On 9 September 2021 you were remanded in custody on unrelated matters. I was told these charges relate to allegations of a sexual nature and are likely to proceed as a contested hearing in the Magistrates' Court at some stage. Your bail for the present matters continued until 9 November 2021 of this year when you were remanded in custody. You now therefore have a total of pre-sentence detention in the amount of 239 days.
17I will just stop to pause there. Do the parties agree that it is 239 days?
18MS HOGAN: We discussed 240, Your Honour.
19HER HONOUR: I beg your pardon, I am happy to amend that. 240 days, thank you.
Nature and gravity of the offending
20I will now address, Mr Floyd, the nature and gravity of your offending.
21The charge of reckless cause serious injury is a very serious offence. It carries a maximum penalty of 15 years. Your plea indicates that you foresaw the probability of serious injury being caused. In this case, a knife was used. The Court of Appeal has often remarked about the dangerousness of knives, given the obvious risk in their use of damage to a victim's internal organs, blood supply and thus to life.[1]
[1] Ejupi v The Queen [2014] VSCA 2.
22Another important consideration is the degree of seriousness of the injury actually sustained by the victim. There is obviously a spectrum of injuries that can come within the parameters of this offence. It can include injuries that are substantial and prolonged, such as where a person is left in a vegetative state or wheelchair bound or suffers some other profound long-term physical injury. The injuries here were obviously serious and life threatening but the case against you is not put on the basis that they are substantial and protracted and there is no evidence before the court as to Mr O’Callaghan’s currents status.
23In this case, there were a couple of factual issues in dispute that need resolution. The first related to whether the knife used was originally in your possession and the second concerned the degree in which you were provoked or defending Ms Spence. Briefly, in your record of interview you stated that you were pulling Mr O’Callaghan off of Ms Spence and that is when a knife has fallen from him. After you have ripped him off her you grabbed the knife. You then later kept the knife with you and threw it down the drain.
24Your counsel submits that the court should not be satisfied beyond reasonable doubt that the knife was bought by you to the scene and further, that it should accept your version of events as to the need to defend Ms Spence.[2]
[2] R v Storey [1998] 1 VR 359; Formasa v The Queen [2012] VSCA 298.
25The prosecution do not accept these claims as credible or that there was substantial provocation by Mr O’Callaghan. I agree that your account in your record of interview in relation to the incident does not appear to be supported by, or consistent with, the evidence in the depositions. In his police statement Mr O’Callaghan states that you were aggressive towards him and said to him ‘do you want to have a crack’. You then punched him in the mouth and he defended himself. In her statement, Ms Spence says that she went into the house and you stayed out the front. Mr O’Callaghan started mouthing off to you. She pushed Mr O’Callaghan and told him he was not welcome there and not to come back. He went to leave but then returned and was yelling at you to ‘go 1 on 1’. You then both started punching each other and she was yelling to stop it. She makes no reference to being directly or physically attacked by Mr O’Callaghan. Ms Hogan for the prosecution also referred to the statement of a neighbour, Ms Jennifer Chaplin, who witnessed the start of the fight between the two of you and does not refer to any imminent danger to Ms Spence.
26I do not accept, on balance, the version you gave in your record of interview where you state that you ripped Mr O’Callaghan off Ms Spence. It follows that I do not accept the submission that you were acting under ‘substantial provocation’, as put by your counsel, that ought to reduce your moral culpability. I do accept, Mr Floyd, that at the time you may have held some concern for the welfare and safety of Ms Spence. You told the police that you did not go there to make trouble but just wanted to get Ms Spence stuff and make sure she was okay. She had been very unwell and you had been taking her to medical appointments. I accept, as your counsel submits, that your concerns may have been heightened because of the background and dynamic of the various relationships.
27In terms of the fighting, there are also some inconsistencies in the account given by Mr O’Callaghan in his statement and other witnesses. I agree with the prosecution that, on the evidence, the altercation can best and properly be characterised as being two sided at the beginning.
28As for the knife used, on the evidence before me I do accept beyond reasonable doubt that you bought the knife to the scene. Police located a knife in your car the day after the offending. The knife was in a sheath. There is little dispute that this was the knife used. Under Notice of 14 September 2021 the prosecution served a DNA statement with results from the knife which confirmed that the blood from the blade contained a single source DNA profile and Mr O’Callaghan was not excluded (the likelihood ratio was 100 billion). I do not accept as a reasonable possibility your version of events in this respect. As the prosecution submit, on your version of events with the knife falling from Mr O’Callaghan, it would have to be accepted that you grabbed the knife, unsheathed the knife to stab Mr O’Callaghan and then took the time to take the sheath with you after the stabbing. This is not a credible explanation.
29However, Mr Floyd, it does not follow from this finding that you possessed the knife for the purpose of using it against Mr O’Callaghan or that you had planned what occurred. The prosecution do not put their case against you on this basis. They accept that what occurred was unplanned and in the heat of the moment. When you got to the address things escalated quickly. The initial physical altercation was two sided. It is sometime during this altercation that you used the knife. I do not regard your actions as premeditated or prolonged. I accept that this was a spontaneous act that occurred very quickly at some stage while the two of you were fighting. Your foresight was of an extremely limited, if not momentary, duration. I accept, as you stated in your record of interview, that you did not expect the commotion to happen, you did not go there to cause anyone harm, you just went there to make sure Ms Spence was okay and to go and get her stuff. I accept Mr Cummins opinion in his report of 6 May 2021 that your offending was situationally motivated and a reflection of poor and impulsive decision making when you are under stress. I regard these matters as relevant to an assessment of your moral culpability. Also, while general deterrence remains a relevant consideration in your case, it is not as paramount or as relevant as it may have been in the case of a premeditated violent crime involving a knife.
30Notwithstanding, Mr Floyd, as I have already stated, your offending was serious and its objective gravity calls for a term of immediate imprisonment. So much was and is conceded, properly, by your counsel, Mr Barreiro.
31As a matter of completeness, because I regard offending on bail as an aggravating feature, any sentence I impose on the summary matter will be served concurrently to avoid double punishment for that offence.
Victim Impact
32The court has not received a victim impact statement in this matter. Given the nature of Mr O’Callaghan’s injuries and the medical attention he received I infer that he has been adversely affected by your offending and I take the impact on the victim into account.
Plea of guilty and remorse
33You indicated that you would plead guilty on 22 April 2021. It is accepted that this was the earliest available opportunity. No witness has been cross-examined in this matter and they have been spared the delay and distress of a trial. Your early plea of guilty, Mr Floyd, is significant and it counts in your favour.
34Your plea is particularly valuable in circumstances where there is a large backlog of cases in the court and I recognise the utilitarian benefit of that. Your counsel referred to in his submissions to Worboyes v R[3] where the court stated that a plea of guilty during the pandemic should result in a ‘perceptible amelioration of sentence’.[4] I accept that you are entitled to a substantial discount on your sentence by reason of your plea of guilty.
[3] [2021] VSC 169.
[4] Ibid, [39].
35Although there appears to have been some attempts to minimise your offending in your record of interview and to Mr Cummins, I do accept that your guilty plea is indicative of remorse and an acceptance of responsibility. I also accepted that you have expressed some remorse for your offending behaviour.
Personal circumstances
36Turning to your personal circumstances you are now 46 years of age, having been born in September 1974.
37Your upbringing was chaotic and characterised by violence, drug use and instability. Your counsel submitted that the Bugmy[5] principles had some mild application in your case. The prosecution contended that while your background was relevant and ‘not optimal’ it did not constitute ‘profound childhood deprivation’ to enliven the Bugmy principles. I accept that you have suffered disadvantages which are likely to have made you more vulnerable to drug use from a relatively young age. I do not consider, on the material before me, that your background operates to reduce your moral culpability for this offending as provided for in Bugmy’s case but I do regard it as a relevant consideration and I take your background into account in sentencing you.
[5] Bugmy v R [2013] HCA 37.
38Your parents separated when you were young. Your mother suffered from mental health issues and abused alcohol. You lived, for the most part, with your grandmother. You were exposed to domestic violence. As a child you intermittently saw your biological father and you witnessed him physically assaulting your mother.
39You have a limited education, you experienced reading and learning difficulties at school and did not complete Year 9. You have a very limited work history. I note that between 2015 and 2016 you did undertake 11 months of a Certificate IV in Alcohol and Other Drugs and Mental Health at Chisholm TAFE but did not complete it because of your circumstances at the time.
40From your late teens you have had housing issues and extended periods of homelessness. Sadly, drugs have been part of your life since you were a young teenager. You commenced using cannabis daily from the age of 14 and started to inject heroin at the age of 18. While you have reduced your heroin use over recent years you have consistently used for over two decades.
41You have an extensive criminal history, which I will come to further in a moment, and you have served several periods of imprisonment. You describe yourself as being institutionalised.
42Since 2013 you have been on the methadone program and you are currently receiving methadone.
43You were in a previous de facto relationship for approximately nine years which ended in 2016/17. You have two children, aged seven and four, who were removed from your care by Department of Human Services in around 2015/16 and presently live with your aunt and uncle. You had known Ms Spence for 10 years and had been in a relationship for approximately 3 years. In mid-2020 Ms Spence was diagnosed with cervical cancer. She underwent chemotherapy and radiation therapy. A letter from Dr Kate Webber dated 19 May 2021 (Exhibit 3) confirmed that Ms Spence had been diagnosed with cervical cancer and as at that time she was receiving palliative radiotherapy. You became Ms Spence’s appointed carer and as you told police in your record of interview, you were taking her to every appointment for her chemotherapy and making sure she was all right.
44As I have noted, you have an extensive prior criminal history. You had been in the community since approximately September/October 2019 until your remand on this matter on 3 December 2020. This was one of the most stable periods in your adult life. You were largely staying out of trouble, managing your drug addiction through the methadone program, you had achieved stable accommodation and you were assisting Ms Spence. I was told at the plea hearing that sadly in the time you have returned to custody Ms Spence passed away.
Prior criminal history
45Your criminal history, Mr Floyd, dates back to 1992. Your prior history is relevant in sentencing and bears upon such matters as specific deterrence and your prospects of rehabilitation. However, I do note that your history is mostly for dishonesty and/or drug related offending. You have a relatively limited history for violent offending or for the possession of weapons.
46It is correct, as the prosecution submit, that you have been given opportunities on a number of previous court orders. I note that over the years you have been placed on approximately three Drug Treatment Orders, all of which were ultimately breached with the remaining time served. It seems clear however that you did make some efforts at engaging with these orders but ultimately relapsed into drug use. I note that whilst associated with the Drug Court in 2018 you spent three to four weeks undergoing residential drug rehabilitation at a facility in Lilydale.
47As I have noted above, you were remanded on 9 September 2021 for matters that remain outstanding. Prior to your most recent remand it appears that you were doing relatively well. You were on CISP bail, complying with its requirements and conditions, living with Ms Spence and taking her to appointments. The subsequent allegations have limited relevance in sentencing you for your current offending but the fact that you have returned to custody does impact upon the assessment of your prospects of rehabilitation. Also, in structuring your sentence I will take into consideration and into account, in a broad manner, that you have served a further two months or so in custody, not directly referable to this offending.[6]
[6] R v Renzella [1997] 2 VR 88.
48I have also taken into account, and have had regard to, all the factors in mitigation that have been relied upon by your counsel, which I will now address in some further detail.
Hardship in custody
49
It is well established that prisoners are, and continue to be, subject to greater restrictions and deprivations than in normal times because of the
COVID-19 pandemic. You have already undergone two quarantine periods. Your last period in quarantine was quite recent because of a close contact within the prison. On that occasion you plea hearing had to be adjourned because you could not appear. In addition, I was told that you have experienced a number of lockdowns and I take these matters into account in sentencing you.
50As noted earlier, sometime after your remand in September of this year, Ms Spence passed away. In your record of interview, you described her as the love of your life. When Mr Cummins assessed you in May 2021, he noted that you presented as being obsessed and preoccupied with the welfare of Ms Spence. Your successful bail application earlier in the year was advanced on the basis that you needed to assist and care for her. Given your return to custody, you were not there when she passed away and you were unable to attend her burial. You told the court that you continue to struggle with your grief and the death of your partner. In relation to your outstanding charges, I was briefly told that they relate to allegations concerning Ms Spence’s daughter. The prosecution submit that the nature of this alleged offending calls into question the bona fides of any hardship of imprisonment on this basis. These allegations remain outstanding, and I was told that you intend to contest them. On the evidence and material before me, I accept that the ill health and ultimate death of your partner, Ms Spence, while you have been in custody has caused you additional hardship and I take this matter into account.
Prospects of rehabilitation.
51In terms of your prospects of rehabilitation, given your extensive prior criminal history and your return to custody, Mr Floyd, your prospects are guarded. They largely depend on you addressing your substance abuse issues and receiving mental health treatment. Your recent efforts and compliance on the CISP program go in your favour and do indicate to the court that you are capable of engaging in treatment. In custody you continue to receive methadone and you are on anti-depressant medication. I was also told that you have the support of your mother and stepfather and that they will continue to support and assist you in the community. You are also motivated to re-establish and continue your
52I also note Mr Cummins assessment of you, using the HCR-20 assessment tool, that your risk of committing a further violent offence is Low-Moderate and trending towards Low, where the risk category options are Low, Low-Moderate, Moderate-High and High.
53I accept and I take into account in sentencing you that you are at risk of becoming institutionalised. In your case, I take into account in sentencing the purpose of preventing recidivism and institutionalisation and facilitating your reintegration into the community.[7]
[7] Dpp v Stone and Uren [2003] VSCA 208, [20].
Sentencing principles
54The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, Mr Floyd, I am required to have regard to a range of matters such as the seriousness of your offending, your culpability, your personal circumstances and those of your victim.
55I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant to your case. I have also had regard to the current sentencing practices for the offence of recklessly cause serious injury. I have reviewed many cases in order to obtain some guide, but comparable cases are of only some limited assistance. Every case is different and the court must have regard to the individual circumstances of each case.
56There was no dispute between the parties that a term of imprisonment, structured with a non-parole, is warranted in your case. In the sentence I am about to impose, Mr Floyd, I have balanced all relevant factors, including my assessment of the offending, matters personal to you, relevant sentencing considerations and practices and the factors in mitigation that were relied upon on your behalf.
Sentence
57Having taken all of those matters into consideration, Mr Floyd I sentence you as follows. You are convicted on both charges and sentenced as follows:
58Charge 1: recklessly cause serious injury, you are sentenced to a term of two years and seven months' imprisonment.
59Charge 2, committing an indictable offence whilst on bail, I sentence you to two months' imprisonment, to be served concurrently with Charge 1 which is the base sentence.
60I fix a non-parole period of 17 months.
61Pursuant to s18 of the Sentencing Act I declare that you have spent 240 days by way of pre-sentence detention.
62Pursuant to s6AAA of the Sentencing Act, had you not pleaded guilty but been found guilty after trial, I declare that I would have imposed a term of imprisonment of four years and two months, with a minimum non-parole period of two years and six months.
63I make the disposal order as sought and note that it was unopposed.
64Ms Hogan, Mr Barreiro, does that deal with all matters?
65MS HOGAN: Yes, Your Honour.
66MR BARREIRO: Yes, may it please the court.
67MS HOGAN: As the court pleases.
68HER HONOUR: Mr Floyd, you could hear everything that I had to say?
69OFFENDER: Yes, Your Honour.
70HER HONOUR: All right, I have imposed a sentence, as you have heard, total effective sentence is two years and seven months. Non-parole period of 17 months and the time that you have already served will be taken off that sentence. Do you understand?
71OFFENDER: Yes, Your Honour.
72HER HONOUR: All right, I would like to thank the parties for their assistance in this matter, thank you.
73OFFENDER: Thank you, Your Honour.
74MS HOGAN: Thank you, Your Honour.
75MR BARREIRO: Thank you, Your Honour.
76HER HONOUR: Please adjourn the court.
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